HomeMy WebLinkAbout1996-2695UNION97_05_01
O/llTARKJ EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'O/IlTARKJ
GRIEVANCE COMMISSION DE
1111 SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396
GSB # 2695/96
OPSEU # 97U013
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Union Grievance)
Grievor
- and -
the Crown in Right of Ontario
(Management Board Secretariat) Employer
BEFORE F D Briggs Vice-Chair
FOR THE G Leeb
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE P Toop
EMPLOYER Staff Relations Officer
Management Board Secretariat
HEARING March 7, 1997
The Umon IS gnevmg that the Employer IS "fallmg to abIde by A.13, m that It IS preventmg
the JSSC from petfomnng Its funcbons m accordance With Paragraph 3" By way of remedy,
the Umon asks for "a declaration that the Employer IS m vIOlatIOn of the Collective
Agreement; retroacbve apphcabon of AppendIx 13 to Apnl!, 1996, all mdIVIduals to made
whole mc1udmg mterest; any other remedy deemed eqmtable m the cIrcumstances"
It IS appropnate at tlus stage to set out AppendIx 7 of the present Collective Agreement
whIch was Appendix 13 m the Memorandum of Settlement and was referred to m the
gnevance That AppendIx states
ClassificatIOn System Overhaul
In accordance WIth ArtIcle 79 1 (Salary), thIS confmns the agreement reached by the partIes
dunng negotIatIOns WIth respect to the ClassIficatIOn System Overhaul.
1 The partIes agree as follows
(a) The framework agreement dated December 7, 1994, IS replaced by the terms
of tlus Appendix effectIve April 1, 1996
(b) The Employer shall contmue and complete the development of the new
claSSIficatIOn system, mcludmg the SIX (6) new classificatIOn plans and as
much as possible of the factor models and related work already Jomtly
completed.
(c) The Employer will consult WIth the Umon at each major stage of the project
and wIll attempt to reach consensus before movmg on to the next stage. The
Employer will prOVIde to the Umon an outlme of the stages of the project and
target dates for completIOn.
2 The partIes agree to estabhsh a consultatIOn process, the Jomt System Subcorruruttee
(JSSC) of the CERC wruch shall conSIst of three (3) persons appomted by each party,
to
I Upon unplementatIOn, resolve dIsputes between the parties ansmg from an}
changes or adjustments that are reqUIred.
2 ReVIew trammg needs ansmg from the r.ew claSSIficatIOn system and oversee
theIr ImplementatIOn,
.., ProVIde a forum for ongomg chscussIOn between the partIes regardmg changes
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and adjustments to the claSSIficatIOn system as may be reqUIred over tIme
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2
4 Serve as the consultatIon group where m the Appendtx the partIes have agreed
to consult.
3 The JSSC of the CERC shall, m addItIon, review and decIde on all complamts or
dIfferences mvolvmg allegations of Improper classIficatIOn.
4 All decISIOns of the JSSC on dtsputes arIsmg under paragraph 3 shall be bv vote of the
members of the commIttee and any deCISIon on wluch the partIes' representatIves
concur shall be bmding on the partIes and any affected employees. Each party must, m
any case where such a decISIon IS made, be represented by an equal munber of persons
appoInted by each party
5 Uruon representatIves consultmg With the Employer shall be prOVided WIth reasonable
travel tune and leave With pay to attend meetmgs and related actiVIties
6 The Employer will complete the project as qwckly as possible and, m any event, no
later than May 31, 1998, and the current classIficatIOn system shall rem am In place
until completIOn.
7 The Employer will unplement the new plans as soon as possible after May 31, 1998
8 It IS understood that nnplementatlon of the new plans shall not mclude the fixmg of any
wage rates for any clasSIficatIOns under the new plans.
9 Durmg the next round of negotIatIons the partIes will bargam.
(i) the fixIng of wage rates for the new pay plans, mcludIng the number and SIze
of pay ranges and method of progressmg through a range;
(ii) the establIshment of ongomg pay adnumstratIOn rules and rules for the salary
treatment of employees on transitIOn from the old system to the new plans.
10 1 The Employer undertakes to conumt twenty milhon dollars ($20,000,000) towards
salary adjustments to employees resultmg when converSIOn from the old pay rates to
the new pay plans takes place as a result of negotiatIOns referred to In paragraph 9 It
IS agreed that tlus Will satisfY the twenty milhon dollar ($20,000,000) conumtment
referred m the OPSEU Local Appendtx executed pursuant to the SOCIal Contract Act.
102 After nnplementatIOn of the new plans, any complamt by an employee about Ius or her
classIficatIon shall be processed as a gnevance under Article 22 (Gnevance Procedure)
but shall be referred to the JSSC for final resolutIOn and shall not be arbItrated under
ArtIcle 22,
103 In the meantIme, until tlus CollectIve Agreement IS no longer m force, the employees
shall be paid the appropnate rates of pay as If the pre-eXIstmg claSSIficatIOns were m
place.
104 The Employer shall be guIded by the factors prescribed by the Pay EqUIty Act m
developmg the new plans.
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105 There wIll be a moratonum on classdicatIOn gnevances untIl June 1, 1998
Bnefly put, It was the posItIOn of the Dmon that the Jomt System Sub-Cormmttee
(herernafter referred to as "JSSC") referred to rn paragraph two (2) should be peIformmg all
of the functIons rn paragraph two (2) and paragraph three (3) It was the Employer's posItIOn
that paragraph three (3) does not take effect untIl after the ImplementatIOn of a new
classIficatIon scheme SImply put, the questIon can be charactenzed as whether paragraph
three (3) m AppendIx 7 IS presently m effect or wIll come rnto effect at some pornt m the
future The partIes were agreed that rn accordance wIth AppendIx 7, the JSSC IS performmg
the functIons set out at paragraphs two (2) through four( 4)
The partIes proVIded the Board WIth consIderable lustory regardmg the Issue of bargammg
urnt overhaul. It IS useful to set out some of that lustory before consIdenng the subnnssIOns
of the partIes. In the expIred CollectIve Agreement, AppendIX 13 was entItled ClassIficatIon
System Overhaul and It stated.
In accordance With ArtIcle 85 1.3, tlus confIrms the Agreement reached by the
parties dunng negotiations for the 1992/93 Agreement With respect to the
ClaSSIfIcatIon System Overhaul.
The parties agree as follows
(a) A resolutIOn must be sought for the eXlstmg claSSIfIcatIOn gnevances and
matters proceedmg to ArtIcle 5 8 negotiatIOns,
(b) There IS a need for a long term solutIOn based on a Jomtl} developed overhaul
ofthe Bargammg Urut Job EvaluatIOn System,
(c) A target tIme frame of December 31 1993 for completion of the ne~ svstem
IS appropnate
(d) A moratonum on classification gnevance should eXist dunng the deSIgn
penod,
(e) As much as possible pnonty treatment should be gIVen to the current
Techrucal Services OAG categones,
(f) The parties wIll meet as soon as pOSSible to agree upon the Jomt process for
undertakmg the Overhaul.
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Subsequent to the slgmng of the most recently expIred CollectIve Agreement, the Social
Contract Act was enacted and, ill accordance wIth that leglslatlOn, the parties agreed on a
Local AppendIX or Local Agreement dated August 1, 1993 In paragraph four (4) of that
agreement, there was reference to a moratonum on classIficatIon gnevances It was stated
ill the Local AppendIx
8 The parties agree that all classIficatIOn gnevances under the Crown
Employees' CollectIve Bargammg Act were under a Collective Agreement
between the partles filed by or on behalf of Employees m the Bargammg Umt
of Pubhc Servants represented by the Umon for wInch a declSlon of the
Gnevance Settlement Board has not been rendered by August 1, 1993 are
withdrawn effective August 1, 1993 and the parties shall take no steps to
further any such gnevance or any heanng of such a gnevance and shall take
no steps to enforce any deciSion of the Board pertammg to any such gnevance
after October 1, 1993
9 The parties shall agree that they will take no steps to further any
claSSification gnevances under the Crown Employee's Collective
Bargaming Act or under a Collective Agreement between the partIes filed
after August 1, 1993, except for any claSSificatIOn gnevances m respect of a
new classIficatIOn system m wInch such gnevances are expressly allowed.
10 For the purposes oftlus Agreement, and m particular paragraph five (5)
and SIX (6) above, "classificatIOn gnevances" mcludes but IS not Inmted to,
(a) all gnevances clamung unproper classIficatIOn of persons classified
wIthm the Office and Adnu1llstratlon Group of the claSSificatIOn
system of the Employer
(b) all gnevances clamung unproper claSSificatIOn of persons WIthIn the
classIDcatlon system of the Employer m wInch part of the settlement
desrred IS a makmg of a new claSSificatIOn or claSSificatIOn standard.
(c) all gnevances claunmg unproper claSSifications of persons WithIn the
classIDcatlon system of the Employer m WhICh part of the settlement
desrred IS the re-classIDcatIon of the gnevor or grIevors to an eXlstmg
claSSIfication standard that properly apphes to hun, her or them.
Subsequent to the local AppendIx, the partIes agreed on a framework for the new
compensation system. That document, dated December 7, 1994, was called, "Framework
Agreement on New CompensatlOn System for OPSEU Bargammg Umt" The first paragraph
of that Agreement stated
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The partIes agree to negotiate the new compensatIOn system based on a pomt
factor evaluation methodology Tlus is ill accordance With AppendIX 13 of the
1992/93 Collccbve Agreement and th.e Local AppendiX of the Social Contract
Agreement dated August 1 1993
Tlus framework agreement set out the pnncIples that the system would ultImately be
establIshed upon and It conSidered the followmg aspects
1 Development and testmg of the system
2 Negotiation of the pay plans
3 ImplementatIOn
4 Mamtenance
5 CommurucatIOn
6 Trammg
At paragraph four (4) of AppendIX 5 to the Framework Agreement, a dIspute resolutIon
mechamsm was proVIded.
An Employees complamt/gnevance will deal WIth the evaluation of lus/her
posItlon m the Job evaluatlon plan wluch apphes to the Employee's Bargammg
Umt. DecISIon by appeal col11ll11ttees, Mechatorl Arbitrators will deal With the
evaluation of the pOSItion not the Job evaluatIOn system smce the scope of
reVIew IS luruted by SectIOn 51 of CECBA.
The next agreement between the partles regardmg the Issue of bargammg umt overhaul or
re-vampmg of the ClassIficatIOn System IS found at AppendIX 7 of the mstant CollectIve
Agreement.
UNION SUBMISSIONS
Mr Leeb, for the Umon, sub1ll1tted that m order for tlus Board to make a detennmatIOn, It
IS necessary to define a gnevance and to detenmne the drfference, If any, between gnevances
and "complamts and dIfferences" To be clear, the Umon conceded that mdIVIduals cannot
file gnevances regardmg theIr claSSIficatIons dunng the penod of the moratonum conSIdered
at Arttcle 10 5 of AppendIX 7 The Uruon further agreed that the JSSC IS not empowered to
deal wIth classIficatIOn gnevances at the present tIme However, paragraph three (3) of
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AppendIx 7 says that the COmmIttee shall "reVIew and decIde on all complamts and
dIfferences mvolvmg allegatlOns of Improper classtficatlOn" There IS no reference to
gnevances
The Umon suggested that to aSsIst m the detenmnatlOn as to whether there IS a dIfference
between gnevances and complamts It IS useful to consIder Arttcle 22 of the Collecttve
Agreement wmch states the followmg
22 I It IS the mtent of thIs Agreement to adjust as qwckly as possible any complamts or
dIfferences between the partIes ansmg from the mterpretatIOn, applIcatIOn,
adnurustratIOn or alleged contravention of tlus Agreement, mcludmg any questIon as
to whether a matter IS arbItrable.
22.2 I It IS the mutual desrre of the partIes that complamts of Employees be adjusted as
qUIckly as possible and It IS understood that If an Employee has a complamt the
Employee shall discuss It WIth the Employee's lll1lllechate SupervIsor WIthm tlurty (30)
days after the crrcumstances gIvmg nse to the complamt have occurred or ought
reasonably to have come to the attentIon of the Employee m order to give the unmechate
SupervIsor an opportunIty of adJustmg the complamt.
22.2 2 If any complamt or chfference IS not satIsfactorily settled by the SupervIsor WIthm
seven (7) days of the diSCUSSIOn, It may be processed witlun an adchtIOnal ten (10) days
m the followmg manner.
STAGE ONE
223 I The Employee may file a gnevance m wntmg WIth lus or her SupervIsor The
SupervIsor shall gIVe hIs or her decISIOn m wntmg wIthm seven (7) days of submlsslOn
of the gnevance
ST AGE TWO
2232 If the gnevance IS not resolved under Stage One, the Employee may sublllit the
gnevance to the Deputy Mllllster or lus or her deSIgnee WIthm seven (7) days of the
date he or she receIVed the deCISion under Stage One In the event that no deCISion m
wntmg IS received m accordance WIth the specIfied time luruts m Stage One the gnevor
may sublllit the gnevance to the Deputy MinIster or hIS or her deSIgnee WIthm seven
(7) days of the date that the SupervIsor was rcqurred to gIVe lus or her deCISIon III
wntmg m accordance WIth Stage One.
Mr Leeb suggested that It IS apparent from the wordmg m ArtIcle 22 that a complamt does
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not become a grIevance untIl filed m accordance wIth Stage One From that pomt, the
outstandmg Issue are consIstently referred to as gnevances However, at the begmnmg of
ArtIcle 22, that IS at the Informal stage, the dIspute IS referred to as a "complamt"
In AppendIx 7, paragraph 10.2 states that any complaInt by an employee regardmg IDS or her
classIficatIOn shall be processed as a grIevance, but shall be referred to t.he JSSC for fmal
resolutIOn and shall not be arbItrated under ArtIcle 22 after the rmplementatIOn of the new
plans. Mr Leeb asserted that It can be seen by a reVIew of the CollectIve Agreement that the
partIes appreciated that there IS a subtle dIfference, but a dIfference nonetheless, between a
complamt or a gnevance
The Dmon subnntted that It IS trIte to say that the Issues of classIficatIon and rmproper
classIficatIon have been a matter of sIgmficant htIgatIon on behalf of members of the
bargammg urnt. GIVen the propensIty of the Dmon to challenge classificatIons, as well as
the knowledge that down-SlZlllg IS meVItable across all levels of every M1ll1Stry, It IS unlikely
that the Dmon would have agreed on behalf of ItS members to a complete prohibItIOn on
raIsmg concerns about therr classIficatIons
Mr Leeb foresaw that the Employer nnght argue that the Dmon was attemptIng to achIeve
through an mterpretatIOn of paragraph three (3) nghts that It clearly gave up at paragraph
10 5, that IS, the "moratonum on claSSIficatIOn gnevances untIl June 1, 1998" It was
contended that It made labour relahons sense that the partIes would recogmze and estdblIsh
some method of dealIng wIth employee dIssatIsfachon arIsmg from theIr claSSIficatIOns
durmg a penod of claSSIficatIOn overhaul. N otwIthstandmg, and mdeed arguably because
of, the conSIderable down-sIzmg wIthm the publIc servIce, the Employer has contmued to
re-classIfy employees. WhIle the Dmon agrees that those affected employees are precluded
from filmg gnevances, they ought not to be precluded from utIlIzmg a mechamsm to dISCUSS
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therr complamts
Paragraph (3) of Appenrnx 7 states that, "m adrnnon", the Comtnlttee wIll reVIew and decIde
all complamts or dIfferences mvolvmg alleganons of Improper classIficatIOn. The Dmon
stated that If the Employer's mterpretanon was correct, that IS to say that there can be no
dISCUSSIon until such tIme as the new classIficanon system IS unplemented, paragraph three
(3) would be a replIcatIOn or a redundancy of ArtIcle 102 of AppendIx 7
Mr Leeb argued that a perusal of the CollectIve Agreement mdIcates that the partIes have
always understood the dIfference between gnevances and complamts As well as the
gnevance procedure, the dIfference IS repeated at ArtIcle 22.9 and Appenrnx four (4) wherem
there IS conSIderatIon of complamts and dIfferences mvolvmg msurance benefits In
accordance WIth that AppendIX, If there IS a gnevance, the employee IS to file a gnevance
However, If there IS a complamt It goes to a comnnttee for resolunon. It IS good labour
relanons practIce for the partIes to negonate a method of dealmg WIth complamts separate
and dIstmct from a mechamsm for dealmg wIth gnevances
It was suggested to the Dmon that rfthts Board were to fmd m ItS favour, It IS entIrely likely
that, given the lnStOI)' of hnganon regardmg classIficanons between these two partIes, all of
the tIme of the JSSC's tIme could be spent reVIewmg and decIdmg classIficatIOn complamts
or dIfferences Mr Leeb dId not deny that possibIhty but stated that the partIes must have
taken that fact mto account dunng the negOtIatIOn process The JSSC IS a Comnnttee
compnsed of three people appomted by each party A decIsIOn IS dependant on the maJonty
of the COImmttee Therefore, there has to be at least one Employer representatIve m
agreement With an employees complamt. AccordIngly, tlns IS the appropnate body to reVIew
and decIde all complamts and dIfferences mvolVIng alleganons of Improper claSSIficatIons
ThIS comnuttee IS to proVIde a forum for ongomg dIscussIOns between the partIes regardmg
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the changes and adjustments to the classificatIOn system, therefore It would be helpful for
the Conumttee to hear ongomg employee complamts to assIst them m that process
It was conceded by the Dmon that the Conumttee could decIde, eIther expressly or ImplIcItly,
not to deal WIth complamts mvolVIng allegatIOns of 1lllproper classIficatIOn by wlthholdmg
agreement of any employer representatIve The necessIty for some employer agreement IS
sufficIent protectIOn for the Employer If It IS concerned about re-classlficatlon dunng the
penod of the gnevance moratonum.
EMPLOYER SUBMISSIONS
Mr Toop, for the Employer, began by urgmg tlus Board to fmd that there IS no dlscernable
dtfference between a complamt and a gnevance It was suggested that "gnevance" IS not a
term of art. A gnevance IS a complamt about workmg condItIOns that IS brought forward by
an mdtvtdual or the Dmon and processed through an agreed upon dIspute mechamsm. The
use of the term "gnevances" or "complamts" are often used mterchangeably m a labour
relatIOns context.
The Employer subrmtted that AppendIx 7 IS the last sectlon of an mterlockmg senes of
documents, all of wluch refer to one huge project of bargammg urnt overhaul. Those
documents cross reference each other and have common language and common govemmg
pnnclples Those prmclples should assIst tlus Board m mterpretmg AppendIx 13 Indeed,
It was suggested that the pnor documents be used as an aId to mterpretatlon.
Mr Toop asserted that AppendIx 13 has, m large measure, language that IS forward lookmg.
It addresses what WIll occur pnor to the ImplementatIOn of the new bargammg umt
claSSIficatIOn scheme AppendIx 13 m the expIred CollectIve Agreement establIshed the
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pnnclples for the long term process wluch IS now contemplated at AppendIx 7 The expIred
CollectIve Agreement proVIdes for a gnevance moratonum dunng the desIgn penod. It IS
apparent that the partIes agreed a suspenSIOn of lItIgatIon was requITed to enable the partIes
to craft a new classIficatIon system.
Mr T oop argued that If an employee filed a wntten complamt WIth a manager about lus
classIficatIOn, the manager would consIder the complamt to be a gnevance, not a Just a
"complamt" There would have been no pracTIcal, or labour relatIons ratIonale for the partIes
to have establIshed a dIfference between a complamt and a gnevance Indeed, the
processmg of a complamt WIth an employee's nnmedlate supemsor IS a subsectIon of the
Gnevance Procedure under the CollectIve Agreement. It was suggested that a complamt IS
a gnevance "at the front end" and remams a gnevance throughout the entIre procedure up
to and mcludmg the moment It IS placed before a Board of ArbItratIon at the Gnevance
Settlement Board. Moreover, m the Framework Agreement, paragraph 4 proVIdes for
mamtenance and therem "classIficatIon complamts/gnevances" are contemplated. Tlus IS
another mdlcatIon that the partIes, m contemplatmg the appropnate language of the
CollectIve Agreement, consIder complamts and gnevances to be one m the same
The Employer asserted that, m the event that thIs Board should fmd there IS a dlstmctIon
between a complamt and a gnevance, It should fmd that a complamt becomes a gnevance
the moment It IS consIdered formally At the pomt that the Dmon and the Employer become
Involved In the processmg or handlmg of a complamt, the matter crystallIzes mto a
gnevance GIven the moratonum consIdered m paragraph 10 5 of AppendIx 7, partIcular
care must be taken to ensure that gnevances, even though cloaked as complamts, not be
processed.
The Employer urged that, gIVen the classIficatIOn grIevance moratonum at paragraph 10 5,
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It would make no sense for the Employer to agree to a "loop hole" such as IS bemg suggested
by the Umon. In the Local Agreement the .partles agreed that no steps would be taken to
further any classrlicatlOn gnevances filed after August 1, 1993, except for those gnevances
m respect of a new classlficatlOn m WhICh gnevances were expressly allowed.
The Employer sublll1tted that when AppendIx 7 IS Viewed m context of the senes of
documents outlmmg bargammg umt, overhaul It IS apparent that the mstant gnevance must
be demed. The JSSC has the nght to reView and decIde complamts ansmg only from the
newly estabhshed system, not the old.
Mr Toop suggested that the phrase "m addItion" found at paragraph three of AppendIx 7,
IS not slgmficant for a fmdmg m the Umon's favour It certamly can not be mterpreted to
allow employees to take complamts to the JSSC about therr present classIfication. In the
Employer's View, "m addItion" makes clear that paragraph 2 IS about the consultation process
and paragraph 3 IS not. Therefore, "m addltlOn" to the consultation process the JSSC wIll
reView and decIde Issues under the new system.
In the final alternative, Mr T oop urged that even If I were to fmd that the JSSC had certam
powers to hear and determme these wsputes, recent amendments made to CECBA under BIll
7 would preclude the Umon from obtammg the result It seeks Under BIll 7 It IS stated, at
sectlOn 52 that:
A ProVISIon m an agreement entered mto that provIdes for the determmatIOn
by an ArbItrator a Board of ArbItratIOn or another Tribunal of anv of the
followmg matters IS VOId.
1 A classIficatIOn system of Employees, mcludmg creatmg a new
classIficatIOn system or amendmg an eXIstmg classificatIOn system.
2 The classIficatIon of an Emplovee, mcludmg changmg an Emplovee's
classificatIOn.
The Employer asserted that, accordmg to the above, the JSSC would constItute a Tribunal.
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Therefore, If the JSSC considered and determIned complaInts regardIng classIficatIOns of
employees throughout the PublIc Semce, th~lr decIsIOns would be rendered null and vOId.
In reply, Mr Leeb conceded that m the event that tlus Board finds that complaInts or
drfferences are the same as gnevances, that IS the end of tlus matter Because, m the event,
there IS no drfference between the two, It IS clear on the face of paragraph 10 5 that there IS
a moratonum on gnevances However, there IS a slgmficant distInctIOn made throughout
the CollectIve Agreement between complamts and differences It was the Dmon' s VIew that
all disputes between the partIes begIn as complamts, but not all complaInts become
gnevances. Indeed, a complamt does not ctystalhze as a gnevance untIl the Informal process
has failed to bnng about a resolutIon
It was further conceded by the Dmon that It IS possible that, If I fInd for the Dmon, the work
of the JSSC rmght become a full tune Job However, there IS nothIng m the agreement that
precludes that from happemng. A practIcal way of ensunng that does not happen could be
a matter for the Cormmttee Itself
RegardIng the Employer's subrmsslOn that the JSSC should only deal With the new
classIficatIon system, Mr Leeb suggested that In deslgmng the new claSSificatIon system, the
Cormmttee would be assisted If they were made aware of problems With the status quo
RespondIng to the Employer's argument regardIng BIll 7, the Dmon urged that If I were to
find for the Employer on that baSIS, notwithstandIng the clear language of the CollectIve
Agreement, the Cormmttee be unable to deal With dIsputes at any tIme Such a result IS a
dIrect contraventIOn of other proVisIOns of AppendiX 7 In any event, "Tribunal" as IS
conSIdered m sectlOn 52 of CECBA does not mclude a "Connmttee" contemplated under the
CollectIve Agreement.
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DECISION
The Umon subnntted that :tf I determme that there IS no dIfference between a complamt and
a gnevance the mstant gnevance must be dIsnnssed. I agree Accordmgly, that IS the fIrst
Issue to decIde The Employer suggested that gnevance IS not a term of art and that there IS
no dIscemable drfference between the two terms. I must dIsagree A reVIew of the CollectIve
Agreement generally and ArtIcle 22 m partIcular leads me to thIS conclusIOn.
In ArtIcle 22 1 the partIes agree that they hope to adjust any "complamts or dIfferences"
between them as qwckly as possible To that end, an employee IS to first gIVe theIr supervIsor
"an opportumty of adJustmg the complamt" If the complamt IS not resolved through that
process, It IS to be processed m a partIcular manner wmch begms WIth the fIlmg of a
gnevance, m wntmg. Thereafter the matter at Issue between the partIes IS refelTed to as a
gnevance I am further buttressed m my VIew by the fact that there are mstances, speCIfIcally
m the cases oflay-ofI or dIscharge, where the employee speCIfIcally by-passes the complamt
stage
Elsewhere m the collectIve agreement, the partIes have agreed on a complamt procedure
dealmg WIth msured benefIts. Those benefIts are conSIdered at ArtIcle 22 9 There IS
reference therem to AppendIX 4 The relevant sectIons state
229 INSURED BENEFITS GRlEV ANCE
22 9 1 An allegatIOn that the Employer has not proVIded an lllsured benefit that has been
contracted for m thIS Agreement shall be pursued as a Umon gnevance filed llllder
ArtIcle 22 13 (Umon Gnevance)
22 9 2 Any other complamt or difference shall be referred to the Claims ReVIew Subconuruttee
of Jomt Insurance Benefits ReVIew CommIttee (JIBRC) establIshed llllder AppendIX
4 (Jomt Insurance Benefits ReVIew Conuruttee), for resolutIOn.
APPENDIX 4 - JOINT INSURANCE BENEFITS REVIEW COMMITTEE
6 Claims ReVIew SubcommIttee
14
(A) There shall be a subcommIttee whose mandate IS to reView, and make deCISIOns on,
complamts or dIfferences mvolvmg the demal of msured benefits under the collective
agreement, when such Issues have not been resolved through the eXlstmg adnurustratlve
procedures, save and except a complam or difference ansmg under ArtIcle 22 9 1
(Insured Benefits Gnevance) of the Central Agreement. The subcommIttee shall be
composed of two (2) representatives selected by OPSEU, and an mdependent third
party who IS agreed by both partIes
There IS further dIstInctIOn found at ArtIcle 22 10 1, the prOVISIOn entitled Sexual
Harassment. It IS stated at artIcle 22 10 3.2
22.10 3.2 Where, at any tune either before the makmg of a complamt or the filmg of a
grievance under Article 22, the Employer estabhshes an mvestIgatIOn of the
complamt, or the employee agrees to the estabhshment of such an
mvestIgatIOn, pursuant to any staff relations polley or other procedure of the
Employer, the tune hnuts for the processmg of the complamt or gnevance
under Article 22 shall be suspended until the employee IS given notice m
wntmg of the results of the mvestIgatIOn.
22 103.3 Where a complamt under Article 22.10 IS made agamst an employee's
supervisor, or any person With supervlsol)' responsibihtIes at a lugher level
over the employees, any oral complamt or wntten gnevance wluch IS
expressed m Article 22 to be presented to the supervisor may be presented
dIrectly to the Deputy MinIster, or the Deputy MinIster's deSIgnee, or any
person appomted by the Deputy Mimster speCIfically to deal With complamts
or gnevances under tlus proVISIon. It IS agreed that the deSIgnee will not be a
person who IS the subject of the complamt gtvmg nse to the gnevance
22 10.5 An employee who makes a complamt under Article 22.10 may be
accomparued and represented by an employee representative at the time of the
diSCUSSIOn of the complamt. at each stage of the gnevance procedure and m the
course of any mvestIgatIOn estabhshed by the employer under any staff
relatIOns pohcy
(EmphaSIS mme)
In my VIew It IS clear that the partIes have recogruzed that there are matters m dIspute
between them that are gnevances and other outstandmg matters whIch are complamts or
dIfferences In some cases, where there IS no resolutIOn through the complamts process, the
matter eIther IS abandoned or goes on to become a wntten filed gnevance However, m
others, such as for complamts regardmg benefit coverage, the complamt goes through an
entirely dIfferent procedure for resolution as prOVIded III the collective agreement.
15
The Umon suggested that wlule all dIsputes begm as complamts, not all complamts become
gnevances. That IS not qUIte correct. For example, a dIspute as to whether an employee has
been dIscharged WIthout Just cause IS never a "complamt" between these partIes In
accordance wIth ArtIcle 22 8 2 There IS no reference to a "complamt" m ArtIcle 22 8 2
Moreover, at ArtIcle 22 13, Dmon or polIcy gnevances are not referred to as "complamts"
and are to proceed dIrectly to the second stage of the gnevance procedure
Havmg deCIded that "complamts" are not "gnevances", I must now turn to the question of
whether paragraph 3 of AppendIx 7 oblIges the JSSC to consIder complamts regardmg
classIficatIOns pnor to the unplementatIOn of the fmalIzed system. The Employer urged me
to fmd that paragraph 3 contams language that IS forward lookmg and, accordmgly the
gnevance must fail. After consIderation, I must dIsagree In order to fmd for the Employer,
I would read "m addItIon" out of paragraph 3 of AppendIx 7
If the Employer were correct m Its suggested mterpretatIon, there would be no need for
paragraph 3 Indeed, It would be redundant. These two prOVISIOns proVIde for dIfferent
cOmmIttee functIons Paragraph 2 1 proVIdes that the JSSC shall "resolve dIsputes between
the partIes arIsmg from any changes or adjustments that are reqUIred" In paragraph 3, the
JSSC shall "reVIew and deCIde on all complamts or dIfferences mvolVIng allegatIons of
Improper classIficatIons" I am buttressed m tlus VIew by the words "m addItIOn" found m
paragraph 3 and by the absence m paragraph 3 of the qualIfymg words, "upon
ImplementatIOn" found at the begmmng of paragraph 2 1
The Dmon properly conceded and It IS clear that, wlule complamts mIght be brought forward
to the JSSC, there IS a moratonum on classIficatIon gnevances untIl June 1, 1998
The Employer suggested that Section 52 of BIll 7 precludes a fmdmg for the Umon. Agam,
16
I must dIsagree I am of the VIew that an mternal COImmttee establIshed by the partIes under
tlus AppendIx does not constItute an "ArbItrator, Board of ArbItratIOn or another Tribunal"
For all of those reasons, the gnevance IS upheld. I remam seIzed of any dIfficultIes that the
partIes may encounter regardmg the rmplementatIon of tlus decIs"on.
Dated m Toronto tlus 1st day of May, 1997
FelIcIty D Bnggs
Vice Charr